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Category: right to counsel

  • Amid Eviction Crisis, Organizers Win Right to Legal Representation for Tenants

    The multiple ongoing crises around housing across the United States are actively corroding the lives and livelihoods of millions. When tenants are evicted from their homes at the whim of their landlord, oftentimes, their difficulties have only just begun — a sequence of destructive individual and social consequences regularly follows.

    Landlords nationwide are generally able to evict tenants with ease. Tenant law structures tend to be overwhelmingly friendly to the propertied class, and filing fees are minimal. More often than not, rentier owners are able to steamroll their tenants in court by fielding legal representation, which they utilize in around 80 percent of eviction cases. Tenants, meanwhile, have a lawyer to defend them, on average, only 3 percent of the time.

    Such vast disproportionality puts the lie to the pretense of justice in the majority of eviction proceedings. The codification of a tenant right to counsel — i.e., enshrining the legal right to a public defender in eviction court — would rebalance power dynamics, disincentivize the kneejerk recourse to eviction and deter exploitation and abuses of many kinds, with major positive ramifications for all renters — especially the marginalized.

    In the last five years, advocates and organizers, recognizing a tenant right to counsel’s outsize potential, have seized upon the opportunity. Nationwide, the work of committed advocates — including tenants’ unions, socialist organizers, housing rights activists and legal aid organizations — has produced tangible progress on real-world implementations of what was once an entirely unrecognized civil right in the U.S.

    The promise of these efforts is traceable to both the dogged work of legal aid programs and the transformative power of collective action taken by tenant’s unions, community associations and organizers who seek to recalibrate the tilted scales.

    An Incessant Stream of Displacement

    Evictions are a pernicious and pervasive feature of the U.S. rental market. From 2000 to 2018, on average, around 3 million households faced eviction filings per year — 7 percent of the renting population. More recently, despite eviction moratoriums, unemployment and CARES Act aid payments during the pandemic, expulsions have persisted: Landlords have filed over a million evictions since March 2020. (The moratoriums have also proven markedly porous, and enforcement has been patchy at best. Regardless, as emergency measures expire, evictions are again rising to pre-pandemic levels, as Mike Ludwig has reported for Truthout.)

    This incessant stream of displacement is, again, enabled by the imbalance of power between renters and landlords in housing court. The disparity has been recognized, even before the recent spate of organizing, by legal aid organizations like the National Coalition for a Civil Right to Counsel, a project of the Public Justice Center. The coalition pushes for public defenders in civil cases, which includes housing court. (The U.S. is an outlier among developed countries in failing to guarantee civil-court defense.) Truthout spoke to National Coalition for a Civil Right to Counsel Executive Director John Pollock about the severity of the eviction crisis and the significant progress made on right to counsel nationwide.

    Pollock emphasized that the effects of evictions are far more devastating than many consider. “When you ask what’s affected by someone losing their home, the better question is what’s not affected. Everything is at risk.” Becoming homeless after an eviction — a very common occurrence — “puts you at immediate risk of arrest, incarceration and a criminal record,” he said. The strain can have an enormous impact on physical and mental health.

    An eviction on one’s record precipitates all manner of future problems. Thanks to landlords’ ability to obtain data on tenant-screening reports, an eviction can follow a tenant for years and create impassable barriers to obtaining later housing. Damages to credit, court fees, rent judgments and worse can easily result. As Pollock put it, “Whether or not you’re homeless, your children may be at risk — you may lose your custody if you don’t have a stable home. Your job. Your children may have to change schools. The list is endless of the ways it can destroy a family.”

    In a country with millions of evictions per year, the toll on human well-being is difficult to contemplate. Government spending on mitigating the social effects, “like homeless shelters, mental health treatment, police and jails, and prosecutors,” Pollock pointed out, far exceeds the cost of providing lawyers to tenants.

    The crises of eviction and housing are tightly interlinked with sprawling systemic injustices. Evictions disproportionately impact people of color — and of those, women are particularly affected. LGBTQ+ discrimination is also rampant. Eviction prevention, via right to counsel and other means, has therefore become of great interest to organizers.

    Landlords Use Evictions to Retaliate Against Tenant Organizing

    Whether an eviction is “warranted” or not, advocates say, should be up for a fair court to decide, in which both parties have equal representation. While “problem tenants” of course exist, landlords also turn to eviction on disingenuous grounds: retaliating in a dispute, against tenant organizing, or if tenants complain to the rent board or the city — even the slightest pushback can result in a whiplash expulsion. Landlords may also wish to sell the building for profit, move into a unit themselves or assert their power to collect debts. (It can be advantageous to hold tenants in arrears to gain leverage.) Regardless of the motivation, these fights can be bitter indeed; cases exist of landlords naming children as defendants in eviction cases as a form of harassment and intimidation.

    The tactical filing of evictions follows a path of least resistance. “If a landlord runs into any sort of dispute with a tenant, it’s so easy for them to go to court and just evict someone.… They know that the tenant is not going to have counsel,” said Pollock. “Landlords that have not been complying with the law don’t really worry. Not doing repairs, overcharging tenants — no one will catch them.” When tenants represent themselves, they must navigate the labyrinthine corridors of the legal system, where even a slight misunderstanding of opaque and obscure laws can torpedo their case.

    To institute a right to counsel — securing a lawyer familiar with the intricacies of the proceedings to help a tenant secure necessary documentation, understand terminology, show up for them in court if they’re at work, decrease judgments, keep an eviction off their record or buy time — is to radically rebalance the scales.

    First Forays in New York City

    The tide first began to shift on right to counsel in New York City, thanks to the long struggle waged by a coalition of activists, community organizers, lawyers and unionists, many of them tenants themselves. Their efforts culminated in the passage of New York City’s 2017 Local Law 136. This earlier iteration of the right to counsel was initially limited to tenants making under 200 percent of the federal poverty line, making it “means-tested,” i.e., subject to income caveats.

    However, during the pandemic moratorium, the program was eventually expanded to all tenants across the city, making it universal, if tenuously. “100 percent of tenants with calendared eviction cases had access to legal services, and 71 percent of tenants who appeared in Housing Court had full representation by attorneys — nearly double the pre-pandemic rate of 38 percent, and an exponential increase over the 1 percent of tenants who had lawyers in 2013,” noted a city press release.

    Follow-up reports indicate the program’s continued success into the present: 84 percent of tenants represented have been able to remain in their homes, evictions dropped by a fifth in some neighborhoods and positive effects on well-being have been documented across the board. Unfortunately, since March, some New York housing court judges have begun to compel tenants to appear in court without representation, due to the moratorium expiration, lawyer shortages and case backlogs. The rupture is a reminder that right to counsel cannot be taken for granted: It must be defended.

    San Francisco Wins Universal Access

    One way to ensure that counsel remains operational and less assailable by opponents is to make it freely available to all. Universality is also a critical element if a program is to maximize just outcomes. Income (“means”) testing puts up barriers to access, necessitates additional bureaucracy and recapitulates “welfare” stigmas.

    At the feverish pace of complex eviction proceedings, and on top of the stress of an eviction, requiring that a tenant ply their way through more reams of paperwork can create a major stumbling block. As Pollock told Truthout, legal aid programs “don’t have a lot of time to even get to the tenant or get them to court.… The process of getting all the documentation to verify income, it really slows things down.”

    The simplest solution is to do away with means testing entirely. New York spearheaded the codification of a right to counsel, but it was organizers and tenant advocates in San Francisco who, in 2018, designed and fought for Proposition F, creating the first truly universal right to counsel in the nation.

    Proposition F was driven by the No Eviction without Representation campaign. Filed by the SF Right to Counsel Committee, the measure’s backers included many members of the Democratic Socialists of America’s (DSA) San Francisco chapter, Tenants Together (and its founder Dean Preston, city supervisor, DSA member and an architect of the measure) and the SF Tenants Union, with the support of legal aid nonprofits like the Eviction Defense Collaborative. Their agitation and organizing won out on the ballot; the program became a reality, and $5.8 million was disbursed to around a dozen legal aid organizations to supply counsel.

    This was a particularly pointed intervention in a city where grotesque wealth inequality and a gaping shortage of affordable housing have made eviction, displacement and homelessness commonplace — a city where, “Evictions account for 17 percent of individuals experiencing homelessness in San Francisco,” SF Weekly reported. Since 2009, San Francisco tenants have been served 1,700 eviction notices a year. Eighty to 90 percent of evicted tenants had no legal representation in housing court.

    Reports through 2021 indicate that Prop F has vastly increased the proportion of tenants able to remain in their homes and led to significant reductions in rent settlements. Universality has also not hampered the program: 85 percent of those who use it are very low income and 9 percent are moderate income, meaning the rationale behind means testing is made redundant — program use has been de facto income-targeted, simply as the structural product of necessity. That said, the effort is still embattled; like New York, a shortage of tenant lawyers has dogged the program. In the initial rollout, it was not immediately available to all tenants, but more recently achieved full funding with a budget increase to $17 million. Regardless, it has already impacted many lives: The stories from tenants who were defended, like those gathered by Martin Kuz in The Christian Science Monitor, are a moving attestation to the invaluable role of tenant counsel services.

    Organizers Take Notice

    After these two coastal metropoles adopted their flagship right-to-counsel models, similar programs began to crop up with remarkable speed: Newark, New Jersey; Cleveland, Ohio; and Philadelphia, Pennsylvania, among them (though these examples remained means-tested).

    Right to counsel was given a further boost after the onset of the pandemic. As Laura Jedeed and Shane Burley have documented for Truthout, major concerns about housing spurred increasingly strident action to aid tenants — both action in policy and the more direct varieties: e.g. rent strikes, occupations and eviction defense, amid a wider surge in tenant organizations and unions.

    The momentum spread to right-to-counsel efforts in Boulder, Colorado; Baltimore, Maryland; Louisville, Kentucky; and Seattle, Washington. As Abigail Savitch-Lew catalogued several for The Appeal, by mid-2021, “Cities like Houston; Santa Monica, California; and Rochester, New York, [had] launched pilot programs, and New Jersey [had] launched a pilot in three counties.” Over the next year, Denver, Colorado; Detroit, Michigan; and Minneapolis, Minnesota, codified full rights, as did numerous local jurisdictions.

    The first full state to do so was Washington, then Maryland, then Connecticut. Numerous bills, ordinances, measures and proposals of all kinds are now pending around the country. While all of these programs vary in their comprehensiveness, their durability, their universality and their funding sources, it’s become clear that, although a long road remains to achieving a national right to counsel, a certain critical mass has been achieved.

    A Tenant Organizing Success in Kansas City

    One of the more resounding recent successes took place in Kansas City, Missouri, where a citywide tenant’s union called KC Tenants organized behind a right-to-counsel ordinance. It was passed in December 2021, thanks to the efforts of grassroots organizers in a coalition that included the union. Implementation began this June.

    Mason Andrew Kilpatrick is a community organizer with KC Tenants. In an email to Truthout, he cited the overwhelming odds facing unrepresented renters: “From 2006-2016, over 99.8% of Jackson County eviction hearings resulted in tenants losing their homes.” 2021 saw over 5,000 evictions.

    One of the recently affected was Sabrina Davis, a tenant in Kansas City who, from 2020 through 2021, was put through a nightmarish ordeal. She told Truthout that faulty wiring in her rental saddled her with monthly utility bills of over a thousand dollars. Her landlord’s response, to avoid paying for repairs, was an immediate eviction. He claimed unpaid rent (fraudulently) as the rationale and attempted to mislead her into skipping a court date. When she showed up anyways, he turned to vicious retaliation.

    “He’d done all these egregious things against me,” Davis told Truthout. “He took the air conditioning off the house.… I came back and the locks were all changed.… They’d trashed the house — they threw red paint on the walls and said that I did it.… It was so horrible.”

    She was able to contact KC Tenants and to secure pro bono representation. Organizer Kilpatrick met with Jones and heard her concerns: “He stood up for me, and he stayed around,” she said. With legal aid, she was able to turn the tide in court, eventually winning back her year’s rent and deposit in a settlement.

    “My landlord had screwed so many people over the years,” she said, with still-smoldering outrage. “My lawyer found out through discovery that he’d been a landlord since 1993, and every single person that man had ever rented to, he evicted. He won cases because people didn’t show up and fight, so he won on default. He figured I wouldn’t show up.”

    She was emphatic on this point: “I won my case because I had counsel. Because I had a lawyer.” This traumatic experience led her into organizing. “I was at my wit’s end,” she told Truthout. “I said, ‘Oh my god, I cannot be just another story. I have to stand up for other folks that are going through the same mess and let them know that they’re not alone and that there’s a way out.’ So, I joined KC Tenants.” Thereafter, she participated in the campaign that won right to counsel: a victory that fulfilled her hopes for others.

    Much as in the rest of the country, in Kansas City, said Kilpatrick, housing court is weighted “against poor and working tenants in the eviction process from the beginning.” Property owners have resources, and their lawyers may have “relationships with judges and civil court servants. These lawyers are well-educated in the civil court process and can work with landlords to find loopholes in leases and laws that make it easier for them to push tenants out of homes.”

    The same patterns are in evidence in Missouri as elsewhere: “The odds were much better for tenants who were represented by lawyers,” Kilpatrick said. “During the pandemic, Kansas City began funding three eviction defense lawyers. Through that program, over 90 percent of tenants who gained representation remained housed and eviction-free.”

    KC Tenants has also undertaken direct actions, including verbally and physically disrupting court proceedings, teleconferences and eviction lockouts. (Eleanor J. Bader reported on some for Truthout in 2020.) Another success was the 2019 passage of a Tenants’ Bill of Rights. Since throwing their weight behind the ordinance in 2021, they brought one of the more robust examples of the right to fruition. The Kansas City program is notable for its strength and universality, as well as the fact that the ordinance is one of the few “drafted directly by impacted tenants,” said Kilpatrick.

    “KC Tenants,” he continued, “knows that people closest to the problems are closest to the solutions. The first step as a collective was that we discussed [the ordinance’s structure] with tenants who have been evicted … or are at threat of losing their homes from negligent landlords.”

    Research, community input and draft models produced a fully funded universal ordinance, which includes features like city staffing support, notifying tenants of their rights, annual accountability reports and a tenants’ oversight committee. The latter “works with the city to hold city staff and contracted lawyers accountable for maintaining the right to counsel process to a standard that actually works for poor and working tenants,” Kilpatrick noted.

    The right-to-counsel victory in Kansas City represents accumulated knowledge and experience, both with reference to local needs and injustices and to the fine-tuning facilitated by the many contemporary examples of right-to-counsel formulas around the country.

    Looking Forward in Portland

    Taking up the mantle of their interstate counterparts are housing advocates, socialists and tenant organizations in Portland, Oregon, including many who were involved with the UP NOW campaign, which won Multnomah County a universal preschool program via ballot measure in 2020. Last year, UP NOW organizers and members of the Portland chapter of the Democratic Socialists of America set their sights on a right to counsel with a new initiative: Eviction Representation for All. Supporters include elements of the North Portland Tenants Collective, Portland Tenants United, Don’t Evict PDX and the Eviction Defense Project of the Oregon Law Center.

    Portland’s progressive sheen often serves to obscure its neoliberal governance and deeply riven injustices. With the city facing a major housing crisis and a correlated increase in its unhoused population, renter stability is increasingly difficult to come by, especially, of course, for the working class and marginalized. Harassment of tenants by landlords has worsened (particularly against people of color), and a lawsuit from landlords recently led the city council to revoke protections against unfair fees. Accordingly, tenants’ rights movements have found particular purchase, and tenants’ unions have been a key source of support for struggling renters throughout the pandemic and the threadbare protections of the would-be moratorium.

    Planning for the Eviction Representation for All measure began in earnest in 2021. “[We] reached out and had really great conversations with organizers that both succeeded in their right-to-counsel measures and those who didn’t,” Colleen Carroll, an Eviction Representation for All organizer and local housing activist, told Truthout. Carroll was previously involved with Don’t Evict PDX, a community organization involved in protests and eviction court monitoring, and is all too familiar with the intricate absurdities and injustices of housing court.

    Court watchers had noted that, despite the ostensible moratorium on evictions for non-payment, plenty of evictions were still going through — yet with notice that listed causes other than non-payment. (Carroll cited examples like “too many plants on a balcony, a TV playing too loudly.”) In other words, landlords were filing spurious charges to skirt the moratorium and continue evictions.

    As organizers began to plan the new right-to-counsel initiative, this insight informed its scope. “Some of the other right-to-counsel programs were only for certain causes,” Carroll pointed out, “or only for certain tenants, like tenants with a child in the household, or low-income tenants. We realized that with any of those types of restrictions, like our moratorium, landlords were going to find a way around it.” To counter this tactic, as well as to avoid the bureaucratic barriers put up by means testing, it was critical, organizers believed, that the measure be universal like those in San Francisco, Boulder and Kansas City.

    It was decided that a ballot measure was the optimal route, the same strategy that had delivered UP NOW’s pre-K program to success. “If we went the ordinance path, we would have been asked to compromise on certain things,” said Carroll, “on it being universal, [or on the] self-funding tax mechanism.” One of the Eviction Representation for All measure’s standout features is that it will be funded by a 0.75 percent increase in an existing capital gains tax, meaning that it simultaneously strikes a blow to regressive taxation. Building on a pre-existing tax also lowers one hurdle to the measure’s passage.

    Eviction Representation for All will also require that tenants be furnished with a lawyer at “first notice of termination, rather than court filings,” Carroll noted — an important nuance. The rapidity of eviction court means that time is of the essence. And, she continued, “It appears on paper that [Portland has] low eviction numbers compared to many other places in the United States. But what isn’t documented is that many, many tenants are evicted before the court process.” Tenants will often leave immediately after first notice, “either because they’re so afraid of the court process, they don’t want an eviction on their record, or they don’t understand their rights.”

    Jesse Joseph is a Portland DSA member, Eviction Representation for All organizer and field coordinator who has been assiduously gathering signatures to get the measure on the November ballot. “When we do talk to people, the response is overwhelmingly positive,” he said. “A lot of people are surprised this doesn’t already exist.” The core pitch is, after all, relatively simple: as the ERA site header puts it, “Eviction court is rigged.”

    “I think you’d be surprised at how many of them will say, I could have used this,” Joseph said. “Or, I’m dealing with an eviction right now. Or my daughter, my brother, my son is dealing with an eviction. A lot of people just needed a moment to vent.”

    Though, if passed, Eviction Representation for All’s incarnation of right-to-counsel will be limited to Multnomah County, a successful measure promises to have catalytic effects on future initiatives, as well as tenant power and collective bargaining. “Tenants in [other counties] are looking to the Multnomah County measure and saying yeah, if we had that protection, we would feel safer organizing [for] repairs, for rent caps, and all of that,” Carroll related.

    At the time of publication, the campaign is moving into the final weeks of the signature-gathering phase. Carroll and Joseph expressed optimism about its eventual placement on the November ballot, and they underscored the transformative effects that a right to counsel would have on Portland and its homegrown injustices.

    A Long-Overdue Remediation

    The fact that the harm of evictions is so widespread means that limiting them has the chance to do a great deal of good. Evictions, as Carroll said, are “a catalyst. I think some people think of it as, ‘Oh, this is the culminating point; this is the big crescendo!’ And it’s not. It’s often the beginning of the story of hardship.” Legal defense can mean halting that familiar narrative before it begins. It’s become abundantly clear that a right to counsel exerts an outsize impact as an intervention, with positive knock-on effects for the well-being of the renting populace.

    It’s not often that a single inflection point is so readily identifiable and combatable in situations of injustice. That’s not to say that it’s a simple matter — but with tenant organizing on the rise after the ruptures opened by COVID, new opportunities are impending in the near term.

    National Coalition for a Civil Right to Counsel Director John Pollock emphasized, “This is becoming a movement that is unified with a common understanding of what works. [We’re] connecting jurisdictions to each other so that everyone’s learning from everyone else. There are dozens and dozens of places that are in the pipeline that we’re talking to.… We see things happening in the next couple years that will even add to what’s been accomplished.”

    The excitement and optimism of advocates on the topic is palpable. All are in agreement that collective action has been the source of the recent string of successes, and remains the means by which further wins will be realized.

    As someone who experienced the brutality that can accompany evictions firsthand, Davis is acutely aware of the urgent need for community solidarity and legal aid. “I’ve lived in Kansas City for 20 years,” she said. “When I became a disabled person, and I had to live on disability, and lost my income and my way of life, I saw how people were treated. It was deplorable to me. I couldn’t handle it. All over Kansas City, every time I moved, I got a worse landlord by the one before.”

    Kilpatrick, who personally assisted Davis during her ordeal, has helped build the kind of community power necessary to resist housing injustice. As he wrote, “When poor and working people create space to listen and take action with each other, our relationships with each other deepen.… We are real about our intent to make change happen together. The realness of our community and relationships is liberation at work.”

    To Davis, who speaks with unreserved gratitude for Kilpatrick and her fellow organizers, these words ring true. “This is the most beautiful thing I’ve ever been involved in,” she told Truthout, adding that the other organizers “lift me up and they make me keep going and keep fighting.”

    “Now that we have the right to counsel, we’re saving people by the day — we saved 150 in a week from eviction,” she added. “I will never quit. I will forever be a KC Tenant!”

    This post was originally published on Latest – Truthout.

  • Right-Wing Supreme Court Tacitly Approved the Execution of Innocent People

    In a shameful opinion that broke down along ideological lines, the right-wingers on the Supreme Court ruled 6-3 this month that people who receive ineffective assistance of counsel are not entitled to present new evidence to prove their innocence in federal court. After the decision in Shinn v. Ramirez and Jones — which flies in the face of the court’s recent precedents protecting the Sixth Amendment right to counsel — even people who can demonstrate their innocence could be subjected to the shameful practice of capital punishment.

    “The court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel,” Sonia Sotomayor wrote in dissent, adding that “the court hamstrings the federal courts’ authority to safeguard that right” and “reduces to rubble” many Sixth Amendment constitutional rights.

    Indeed, the ramifications of the Shinn decision are frightening. “When a capital defendant is poorly represented by an appointee of the State, the State gets to defend the unfairly won conviction in federal court and bar the defendant from even showing that crucial evidence was omitted from the trial due to lawyer malfeasance,” appellate habeas defense attorney Chuck Sevilla told Truthout. “This obvious Kafkaesque scenario could, and probably will, lead to the execution of the innocent.”

    The court used a pair of Arizona cases to reach this decision.

    The Case of Barry Lee Jones

    In 1994, Barry Lee Jones was charged with murdering his girlfriend’s 4-year-old daughter, Rachel Gray. The prosecution argued that Rachel died from an injury while in Jones’s care. But Jones’s trial attorney didn’t perform any investigation, which would have uncovered medical evidence that Rachel’s fatal injury could not have progressed as rapidly as the prosecution claimed. This evidence may have demonstrated Rachel was injured when she wasn’t in Jones’s care. Since the jury never heard this evidence, they convicted Jones of murder and the trial judge sentenced him to death.

    Arizona law didn’t allow Jones to argue on direct appeal that his trial lawyer provided him with ineffective assistance of counsel. The first time he could raise this issue was in a state habeas corpus proceeding, where Jones once again was appointed an incompetent lawyer, who lacked the minimum qualifications for appointment in a capital case. The new lawyer also carried out almost no investigation, failing to investigate the ineffective assistance of Jones’s trial attorney. The state habeas lawyer didn’t even allege in the habeas petition that Jones’s trial lawyer was ineffective for failing to investigate the medical evidence. The Arizona courts denied Jones’s habeas petition.

    Jones filed a petition for habeas corpus in Federal District Court, where he was finally represented by a competent attorney. The District Court held an evidentiary hearing where Jones’s lawyer presented exonerating evidence that could have been offered by his trial counsel and state habeas counsel. After the hearing, the District Court found that Jones’s state habeas lawyer provided ineffective assistance of counsel and therefore Jones could raise the issue for the first time in federal court. The District Court also concluded that there was a “reasonable probability that the jury would not have unanimously convicted [Jones] of any of the counts” if Jones’s trial attorney had “adequately investigated and presented medical and other expert testimony to rebut the State’s theory” of Jones’s guilt.

    Arizona appealed the District Court’s decision, arguing that the Antiterrorism and Effective Death Penalty Act (AEDPA) prevented the District Court from considering new evidence. The Ninth Circuit Court of Appeals affirmed the District Court’s ruling.

    The Case of David Ramirez

    David Ramirez was convicted of capital murders of his girlfriend and her daughter. During the sentencing phase, the state court appointed a psychologist to conduct a mental health evaluation of Ramirez. But Ramirez’s trial lawyer failed to provide the psychologist with evidence that Ramirez had an intellectual disability which could mitigate against a death sentence and in favor of life in prison without parole. Ramirez was sentenced to death.

    Like Jones, Ramirez was appointed a lawyer for his state habeas claim. And like Jones, this was the first time Ramirez had an opportunity to claim he had received ineffective assistance of trial counsel. Again, as in Jones’s case, Ramirez’s state habeas attorney didn’t conduct an investigation despite knowing that Ramirez might suffer from intellectual disabilities. Neither did Ramirez’s state habeas attorney argue that trial counsel provided ineffective assistance of counsel by not developing and presenting mitigating evidence. The Arizona courts denied Ramirez’s habeas petition.

    A Federal District Court appointed the Arizona Federal Public Defender to represent Ramirez in a federal habeas proceeding, citing “concerns regarding the quality” of his prior attorneys. Ramirez argued in his habeas petition that his trial counsel had provided him with ineffective assistance. He submitted evidence from family members, who had never been contacted by Ramirez’s trial lawyer and his state habeas lawyer. This evidence demonstrated that Ramirez ate on the floor growing up and slept on dirty mattresses in places filthy with animal feces; that his mother beat him with electrical cords; and that he had multiple apparent developmental delays, which included “delayed walking, potty training, and speech” and he was unable to engage in basic hygiene or use eating utensils.

    The court-appointed psychologist who evaluated Ramirez for the sentencing phase of the trial told the habeas court that if the trial attorney had given him Ramirez’s school records and IQ scores, he would have insisted on comprehensive testing. Ramirez’s trial counsel submitted an affidavit saying she wasn’t prepared to handle “the representation of someone as mentally disturbed as … Ramirez.”

    But the District Court denied Ramirez’s ineffectiveness claim and refused to allow him to present further evidence in the federal habeas proceeding. Arizona conceded that Ramirez’s state habeas lawyer performed deficiently. The Ninth Circuit reversed and directed the District Court to receive evidence to support Ramirez’s ineffectiveness claim, saying he had been “precluded from such development because of his post-conviction counsel’s ineffective representation.”

    The Supreme Court reversed the Ninth Circuit decisions in both Jones’s and Ramirez’s cases.

    Defendants Who Receive Ineffective Counsel Are Now Trapped in a Catch-22

    In 2012, the Supreme Court ruled in Martinez v. Ryan that defendants could argue that they received ineffective assistance of counsel for the first time in federal court. But on May 23, 2022, the court ruled in Shinn that these defendants cannot present evidence to support those claims.

    Defendants who are convicted in state court must first raise constitutional challenges to their convictions in state court. If they don’t, they are in “procedural default” and a federal court cannot review their constitutional claims. In Martinez, however, the court held that if a state allows a prisoner to raise a claim of ineffective assistance of counsel for the first time in a state habeas corpus proceeding (after a direct appeal has already been heard), the lawyer’s ineffectiveness at the habeas stage constitutes “cause” to excuse the procedural default.

    AEDPA (with some exceptions) forbids a federal court from holding an evidentiary hearing where the defendant “has failed to develop the factual basis of a claim in State court proceedings.”

    The issue in Shinn was how to reconcile Martinez’s permission for a prisoner to claim ineffective assistance of trial counsel with AEDPA’s prohibition on presenting evidence to support that claim.

    Clarence Thomas wrote the majority opinion in Shinn on behalf of himself, Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The court held that “a federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.”

    Trapping defendants in a Catch-22 conundrum, the majority ruled that defendants are “at fault” for failing to raise a claim of their lawyer’s ineffectiveness in state court, even though that failure was caused by the errors of their lawyer.

    In her dissent, joined by Stephen Breyer and Elena Kagan, Sotomayor explained the unfairness of the majority’s holding. She wrote, “A petitioner cannot logically be faultless for not bringing a claim because of postconviction counsel’s ineffectiveness, yet at fault for not developing its evidentiary basis for exactly the same reason.”

    Ironically, while the majority held that Jones and Ramirez had defaulted by not raising their claims in the lower court, the right-wingers excused the state from failing to object to the evidentiary development of Ramirez’s claim and raising an AEDPA argument in the District Court or in the Ninth Circuit. In a footnote, Thomas wrote, “Because we have discretion to forgive any forfeiture, and because ‘our deciding the matter now will reduce the likelihood of further litigation’ in a 30-year-old murder case, [citation omitted], we choose to forgive the State’s forfeiture before the District Court.”

    Sotomayor called the majority opinion “perverse” and “illogical” and wrote that it “makes no sense.” She noted that since claims of ineffective assistance often involve errors of omission (such as the failure to properly investigate), the proof of ineffectiveness will necessarily require evidence outside of the trial record.

    “To put it bluntly: Two men whose trial attorneys did not provide even the bare minimum level of representation required by the Constitution may be executed because forces outside of their control prevented them from vindicating their constitutional right to counsel,” Sotomayor wrote.

    The court’s ruling has alarming implications. It will preclude defendants from presenting evidence that they are innocent. “Without ineffective assistance of counsel claims, there is no procedural vehicle to bring evidence of actual innocence in most states,” Michigan law professor Andrew Fleischman tweeted.

    Nearly 3,000 people have suffered wrongful criminal convictions since 1989, according to the Innocence Project, and 186 people sentenced to death have been exonerated since 1973.

    Moreover, as I wrote in 2014, the death penalty leads to the execution of innocent people, is racist in its application and imposition, does not deter homicide, is likely unconstitutional, and flies in the face of nearly all industrialized countries that have abolished capital punishment.

    Shinn “effectively ensures that innocent people will remain imprisoned,” Salon’s Mark Joseph Stern tweeted. It also means that innocents will likely be executed, as habeas attorney Sevilla predicts.

    Attorney Robert Loeb, who represented Jones and Ramirez in the Supreme Court, called the Shinn decision “tragic,” not just for his clients but also for myriad prisoners. “The court’s decision effectively closes the federal courts to many prisoners with extremely serious constitutional ineffective trial counsel claims simply because they were unlucky enough to have incompetent lawyers at every stage of state court proceedings,” he said.

    Stern sees Shinn as one more in “the unceasing stream of callous, radical, reactionary decisions coming from the Supreme Court,” which “is fairly easy to miss because so many of them involve complicated points of law.” Stern added, “But the conservative majority is very much in the midst of a revolution. And it is a brutal one.”

  • Evictions Are Climbing to Pre-Pandemic Levels in Cities Across the US

    Despite billions of dollars in federal rental assistance flowing to cities and states, the number of evictions sought by landlords is climbing back to pre-pandemic levels in cities across the country, as wage growth continues to lag behind inflation and millions of people struggle with the rising cost of basic necessities.

    An estimated 35 percent of respondents to the U.S. Census Bureau’s latest Household Pulse Survey said they are either “very” or “somewhat” likely to leave their home in the next two months due to an eviction. Only about 11 percent said they applied for and received rental assistance through federally funded programs typically administered by states and cities, which are charged with distributing around $46.5 billion in aid to landlords and tenants. A larger Pulse survey found that nearly 25 percent of renter households are “slightly confident” or “not confident at all” in their ability to pay the next month’s rent.

    These federal figures are just estimates extrapolated from surveys, but if they are anywhere close to reality, a growing wave of evictions could displace millions of people as the cost of living spikes.

    Until recently, employment gains and support from temporary pandemic aid packages shielded the working class from the harms of inflation, according to Shawn Fremstad, a senior policy fellow at the Center for Economic and Policy Research. However, corporations continue to raise prices on consumers, and Congress failed to extend safety net programs such the expanded Child Tax Credit that kept millions of people from going hungry last year.

    “But it is now clear that corporate greed is hitting the working class head on,” Fremstad said in a statement this week. “According to the Census Bureau, just over one in three adults (about 34 percent) now report difficulty paying for the usual household expenses, the highest level we’ve seen since early 2021.”

    Across the six states and 31 cities tracked by Princeton University’s Eviction Lab, landlords filed for more than 10,247 evictions in the last week alone. In Texas cities — Houston, Dallas and Fort Worth — landlords filed for 37,000 evictions in the first three months of the year, according to a Texas Tribune report based on the same data.

    In Dallas, eviction filings plummeted during the height of the pandemic to as few as six per week, but filings skyrocketed after local and federal eviction moratoriums were lifted months ago. More than 1,000 filings were recorded in Dallas during one week this month alone. Similar reports are surfacing in cities across the country as pandemic social aid dries up.

    And the housing crisis goes beyond eviction. Thanks in part to a broken social safety net and low wages for workers across multiple top industries, nearly one in three U.S. households can only afford to pay $600 in rent per month or less, resulting in many families grappling with crowded or dangerous housing conditions.

    The United States was facing a housing and eviction crisis long before the pandemic forced businesses to shut down and put millions of people out of work. Even before the pandemic, many were charged rent they could not afford, according to housing justice groups. Prior to 2020, more than 3.6 million evictions were filed each year in the U.S.

    Falling behind on rent can be a slippery slope toward losing a home, especially in red states with few legal protections for renters. When facing an eviction, only about 3 percent of tenants are represented by an attorney compared to about 81 percent of landlords, according to the National Coalition on the Right to Counsel. However, many evictions are never even challenged in court, according to Greg Pollack, a staff attorney at the Right to Counsel Coalition.

    “They just leave. If they try to fight alone, they will lose, and they know it,” Pollock said in an interview. “Half of the people involved don’t even go to court for something that can make them homeless, lose their children, lose their job.”

    Even the filing of an eviction, regardless of the outcome in court, can remain on a tenant’s record for years.

    The burdens of this crisis are extremely uneven. From 2012 to 2016, Black tenants on average were served eviction notices from landlords at nearly twice the rate of white renters, and low-income Black women were disproportionately targeted, according to the American Civil Liberties Union.

    Fortunately, Pollock said concerns about housing during the pandemic have amplified efforts in multiple cities to guarantee tenants the right to legal representation and set up eviction diversion programs that aim to resolve disputes between tenants and landlords with the goal of preventing an eviction hearing in court. Tenants unions have also organized to collectively challenge landlords and fight evictions across the country.

    Washington State, Maryland and Connecticut established “right to counsel” programs that provide legal counsel to tenants facing eviction based on income, and similar programs were recently established in New York City, San Francisco, Newark, Boulder, Baltimore, Philadelphia, Louisville, Kansas City, Minneapolis, Toledo, Seattle, Denver and Cleveland, according to Pollock.

    “There are now 16 jurisdictions that have right to counsel. There were zero in 2017,” Pollock said.

    Other cities attempted to thwart and eviction crisis by passing new protections for renters, but Pollock said these efforts suffer from “enforcement problems.”

    “Often tenants have to file an affidavit of some kind, they don’t know how to do it, and landlords can challenge it,” Pollock said. “In the cities that don’t have a right to counsel, some of the eviction diversion programs and other efforts have helped, but sometimes they are hampered by the fact that there are no lawyers there to make sure that laws are actually followed.”

    Even in cities where tenants have a right to counsel, the infrastructure behind many of the new programs is still being built. Pollack said there are shortages of defense attorneys for tenants across the country. A federal moratorium on evictions was thrown out by the Supreme Court last August, and most local moratoriums have expired. Local courts are filling with tenants facing eviction, with in-person hearings replacing the onerous Zoom calls that previously slowed court proceedings and locked out defendants without internet access during pandemic lockdowns.

    Still, advocates know a right to counsel can keep many people in their homes. In New York City, 84 percent of tenants with legal representation stay in their homes; in Cleveland, 93 percent of represented tenants avoid an eviction or involuntary move, according to Pollock.

    Many tenants are unable to appear in court due to work, family and other obligations during the daytime. In cities without a right to counsel, these tenants are often forced out of their homes without a chance to assert their rights. Legal representation from right to counsel programs instantly fixes that problem, with attorneys appearing in court and filing paperwork on behalf of tenants.

    Pollock said advocates are encouraging more law students to become tenant’s attorneys in hopes of building a “pipeline” from graduate law schools to state and local programs that guarantee legal defense for tenants.

    “We view this as a cutting-edge civil rights fight, which it is; we view this as part of the fight for the right to housing,” Pollock said.

    This post was originally published on Latest – Truthout.